Prior to the Supreme Court’s decision to uphold the Affordable Care Act in NFIB, the overwhelming focus of the political and legal commentary was on whether the individual coverage requirement (“mandate”) was a constitutional exercise of Congress’ commerce power. As a result, the Court surprised almost everyone when it upheld the mandate as a valid exercise of Congress’ power to tax. To do this, the Court effectively rejected the notion that the ACA created a legal mandate to buy insurance, and it focused on the role of the shared responsibility payment. Despite the fact that the ACA labeled this payment a penalty on the failure to obtain insurance, the Court held that the payment would function more like a tax on consumer choice: the ACA gives people a lawful choice between buying insurance and paying the exaction, and the payment amount is not significant enough to undermine this choice. This characterization may have saved the law as a constitutional matter, but it underscores a very serious structural challenge for implementation: the success of health reform depends on broad consumer participation in the new health care markets, and choice has the potential to undermine this success.

There has been relatively little discussion about consumer purchasing behavior or the assumptions underlying predictions about how many consumers will choose to participate in the new markets. And this is precisely why, despite NFIB’s holding, we should not be so quick to dismiss the importance of the mandate/penalty framing that dominated pre-NFIB commentary. Punitive sanctions are not the only tools used by the federal government to influence behavior; government can also leverage its expressive power to define or change social norms in ways that can accomplish the same goal. The ACA may not have created a true legal mandate, but this Article argues that the compulsory framing in the ACA, and in the government’s narrative explaining it, creates a new moral mandate for individuals to obtain insurance. This individual moral mandate is part of a broader expressive message to redefine the social norms relating to health care access and to underscore a moral obligation that is shared by everyone –– government, employers, providers, insurers, and individuals –– to support a system that will improve access to care. NFIB made clear that individuals have a genuine legal choice about whether to participate in this system, but can government leverage its expressive power to define the meaning of this choice in a way that influences people to make the right one?

Stuart Minor Benjamin (Duke University School of Law) has posted Algorithms and Speech (161 University of Pennsylvania Law Review 1445 (2013)) on SSRN. Here is the abstract:

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance—algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt a limiting conception of the First Amendment, but any nonarbitrary exclusion of algorithm-based decisions would require major changes in the Court’s jurisprudence. I believe that First Amendment coverage of algorithm-based decisions is too small a step to justify such changes. But insofar as we are concerned about the expansiveness of First Amendment coverage, we may want to limit it in two areas of genuine uncertainty: editorial decisions that are neither obvious nor communicated to the reader, and laws that single out speakers but do not regulate their speech. Even with those limitations, however, an enormous and growing amount of activity will be subject to heightened scrutiny absent a fundamental reorientation of First Amendment jurisprudence.

This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the VRA after Shelby County v. Holder. We argue that voting rights activists ought to be prepared — because of developments in constitutional law, or politics, or political practice — for a future in which section 5 is not part of the voting rights landscape. If the Court strikes down section 5, an emerging and fragile ecosystem of private entities, non-judicial institutions, and organized interest groups of various stripes, may be willing and able to mimic the elements that made section 5 an effective regulatory device for protecting the rights of voters of color. In this model, the primary actors are private or civic intuitions. We term this “the private protection model.”

In other contexts, these civil society or third-party groups might be identified as nongovernmental entities. They include public-interest groups, advocacy organizations, political parties, political committees and the like. For ease of exposition we broadly identify them here as institutional intermediaries.

These institutional intermediaries may be well positioned to address the vexing questions posed by voting rights policy in a period of transition: How much racial discrimination do we have? Who are the bad actors? Should we have a universal voting rights policy, a race-based one, or one that protects against disenfranchisement motivated by partisanship and ideology?

As voting rights activists plot a post-Shelby County contingency strategy, they should both account for institutional intermediaries and think about the types of changes that could enhance the ability of these groups to better protect voting rights, now and in the future.

The commonly-held assumption that there exists a genuine dispute between originalists and nonoriginalists can appear surprisingly infirm when closely scrutinized. Many contemporary originalists speak in terms of what the constitutional law is or consists of. Their claim (to a first approximation) is that the original public meaning of the constitutional text is our ultimate constitutional law. In contrast, most contemporary nonoriginalists tend to speak in terms of what constitutional interpreters should do. These nonoriginalists (often termed “pluralists”) urge that judges do and should decide cases based on a variety of considerations or facts, including: semantic facts concerning what the constitutional text means; historical facts regarding what courts and other state actors have said and done in the past; sociological and psychological facts about present-day Americans' behavior and thoughts; moral facts regarding what justice demands; prudential facts regarding what would make the legal system work better; and so on. In short, originalists seem committed to a theory of law, whereas nonoriginalists appear to advocate a theory of adjudication, and the two need not be construed as incompatible.

In order to determine whether originalists and nonoriginalists really do disagree with each other, it will be useful to translate nonoriginalist views about what judges should do into claims about what the constitutional law is. In this essay, produced for a symposium on “constitutional foundations,” we attempt to effectuate just such a translation — that is, we devise an explicit nonoriginalist conception of constitutional law that can serve as a clear competitor to the originalist conception. According to the conception of law that we deem faithful to the spirit of nonoriginalists' adjudicative prescriptions, the constitutional law consists of some combination of semantic, historical, sociological, psychological, moral, and prudential facts. Some influential originalists have already anticipated such a nonoriginalist conception of law by arguing that any such combination of different kinds of facts suffers from incoherence, impossibility, or some analogous fatal defect. “The combinability problem” is the name we give to this problem that allegedly ails all pluralist nonoriginalist conceptions of law. We disambiguate several versions of the combinability problem and disarm each in turn. Furthermore, with a view toward blunting what we consider the most potent version of the combinability problem, we offer an avowedly tentative and very partial enumeration of the ultimate legal norms of the American legal system.

This Article offers a fresh perspective on the pleading standard of plausibility. The consensus regarding plausibility is that it requires a judge to determine the probability of the plaintiff’s allegations. This perspective has led to much of the criticism of the plausibility standard. In reality, plausibility requires a judge to perform an analytically distinct inquiry, which I term a confidence analysis. Recognizing this fact does not immunize plausibility from all of the criticism it has received. It does, however, clarify the analysis required under the standard, which should alleviate many of the concerns associated with plausibility.

Tonja Jacobi and Eugene Kontorovich (Northwestern University - School of Law and Northwestern University Law School) have posted Why Judges Always Vote on SSRN. Here is the abstract:

This paper provides the first account of the practice of universal voting on the Supreme Court. Full participation among justices is explained using models of spatial competition, showing that two features particular to the Court encourage full participation. First, the doctrine of stare decisis makes the resolution of future cases in part dependent on the resolution of present ones. This raises the cost of abstention, particularly to risk-averse justices. Second, the so-called narrowest grounds or Marks doctrine enforces the logic of the median voter theorem in cases presenting more than two options. This makes voting by otherwise indifferent or alienated justices rational, where it otherwise would not be.

Starting from the position that officer accountability is a core value of American constitutionalism, this article reassesses MARBURY V. MADISON in light of the indictable acts connected to the nondelivery of Marbury’s commission. First, it reads Chief Justice Marshall’s opinion against the background of personal and political hostility among the principals, including between Marbury and President Jefferson. Second, it identifies avenues of further redress open to Marbury before and after the Supreme Court’s refusal of the mandamus order, and it considers why they were not pursued. Finally, having identified alternative procedural traditions on which Marshall could have drawn, and reviewed decisions by state and federal judges in analogous suits against officers, it concludes that MARBURY'S deepest contribution was to elevate the principle of jurisdiction over the imperative of remedy in constitutional decision making.

Although the United States began its international legal career in 1776 as an outlaw, a rebel against the European legal order, it soon established itself as a juridical equal among the so-called Family of Nations, consisting of “civilized” European states. Yet it is a remarkable historical fact that when the British launched the Opium War in 1839 to coerce China to participate in free trade (freedom of trade not including the right not to buy opium), most Americans sided with the Chinese, against the British. With confiscated British opium being flushed into the Canton harbor, the events echoed the still not-so-distant Boston Tea Party — two heroic acts of struggle against British imperial interventions in trade, in China and America, respectively. However, after China was indeed successfully opened for “free trade” at the end of the Opium War, in 1844 President Tyler sent the first American minister to China to negotiate a trade treaty that would create a framework for American participation in the that trade as well as the basis of the United States’ political and legal relations with China until 1943. Tyler’s plenipotentiary Caleb Cushing — a New England lawyer as well as future U.S. Attorney General — ended up exceeding his instructions and (with the backing of gunboats), negotiating an extraordinary Treaty of Peace, Trade, and Amity which ultimately placed China in a semi-colonial relationship vis-à-vis the United States. Most notably, the Treaty of Wanghia of 1844 gave Americans the privilege of extraterritoriality: even while on sovereign Chinese territory, American citizens would not be subject to “despotic” Chinese law, until such time that the Chinese had created a “civilized” (i.e., modern liberal) legal regime. This article tells the little-known story of the beginnings of Sino-American legal relations and of the foundation it laid for the emergence of an extraterritorial empire of U.S. law in the Asia Pacific, ultimately ranging from China to Japan, Korea to Siam, Borneo to Tonga, and beyond. Long before the United States came to practice European-style territorial imperialism at the conclusion of the Spanish-American War 1898, the United States became a global leader in the institutionalization of a kind of legal imperialism in the Orient. In addition to analyzing the history of U.S. extraterritorial jurisdiction in Asia, this article outlines the changing global claims to sovereignty among Europe, the United States, and China over the course of the nineteenth century.

This article addresses a nagging issue in the field of scientific evidence: What should the legal system do when experts developing a statistical approach to forensic identification are making good progress, but are not provably more accurate than experts who make judgments, often convincing judgments, based upon the their analysis of the specific facts of each case? That is the state of affairs in the field of authorship attribution: Computer scientists and computational linguists develop and test their models while a group of forensic linguists continues to testify in cases without mathematical checks on their conclusions. The legal system rightly prefers algorithmic expertise over intuitive expertise, but when it is not clear that the algorithms do a better job, the question becomes more difficult. The article discusses the psychological literature on the question of algorithm versus intuition and applies it to authorship attribution. It concludes that the insights of the intuitive experts, sometimes called practitioners of forensic stylistics, may have a great deal to contribute to the models created by the computational experts; that practitioners of stylistic comparison have an obligation to conduct far more research into the accuracy of their methods, including, in the short-run, proficiency testing; and that a healthy combination of cooperation and competition is gradually leading to improvements in the field and convergence around those methods that prove successful.

This Article advances an account of the right to development as a legal instrument that holds the international legal order accountable for its role in the production and reproduction of global poverty. It first distinguishes moral conceptions of human rights, as instruments that protect universal features of humanity, from legal conceptions, which tie their existence to their specification in international instruments promulgated in compliance with international legal norms governing the creation of legal rights and obligations. Despite textual ambiguities in the various instruments in which it finds expression, the right to development vests in individuals and communities who have yet to benefit from development. It imposes internal obligations on states in which they live to address conditions that contribute to their plight. The right also imposes external obligations on international legal actors, including developed states and international organizations, to assist developing states in poverty reduction. The right’s external obligations are negative and positive in nature. Its negative dimensions require states and international institutions to fashion rules and policies governing the global economy in ways that do not exacerbate global poverty. Its positive dimensions require states and international institutions to provide assistance to developing states in the form of development aid and debt relief. Both drawing on and departing from debates about global justice in contemporary political theory, it justifies these obligations by linking the purpose of the right to development to international law’s engagement with colonialism and economic globalization.